STRATEGIC LIEN ACQUISITIONS LLC v. REPUBLIC OF ZAIRE

This matter involves an attempt by plaintiff Strategic Lien
Acquisitions LLC ("plaintiff") to enforce the collection of an
unpaid District of Columbia water and sewer bill for the embassy
of the former Republic of Zaire (now the Democratic Republic of
Congo). Plaintiff originally filed a foreclosure action in the
Superior Court of the District of Columbia, naming as defendants
the Republic of Zaire, the District of Columbia, and "any and all
persons having or claiming to have any interest" in the real
property on which the embassy is situated. Complaint at 1. Oscar
Tatanene Manata, purporting to be a person with such an interest,
removed the matter to this Court, and filed an answer and
counter-claims.*fn1 This Court then ordered the parties to
show cause whether the action was properly removed to this Court.
Having considered the parties' submissions and the entire record
in this case, this Court concludes that it lacks jurisdiction
over this matter, and therefore remands the case to the Superior
Court. Manata first argues that removal was appropriate because of the
diversity jurisdiction of this Court. Counter
Defendant/Plaintiff's Show Cause ("Show Cause") ¶ 7. Manata is
correct as a general proposition that a defendant can remove a
state court action in which there is complete diversity under
28 U.S.C. §§ 1441(a), (b). However, section 1441(b) only permits a
defendant to remove a case to federal district court based on the
diversity of the parties if "no defendant `is a citizen of the
State in which such action is brought.'" Caterpillar, Inc. v.
Lewis, 519 U.S. 61, 62 (1996) (quoting 28 U.S.C. § 1441(b));
see Neal v. Brown, 980 F.2d 747, 747-48 (D.C. Cir. 1992).
Manata admits that he is a "permanent resident alien of the
United States and the District of Columbia," and that he lives to
this day in the District of Columbia at the embassy of the former
Republic of Zaire. Notice of Removal at 2. For purposes of this
analysis, he is therefore a citizen of the District of Columbia.
See 28 U.S.C. § 1332 (for purposes of diversity jurisdiction,
"an alien admitted to the United States for permanent residence
shall be deemed a citizen of the State in which such alien is
domiciled"). He is also a defendant in the foreclosure action,
which was brought in the District of Columbia.*fn2
Accordingly, because Manata himself is a defendant who is a "a
citizen of the state in which the action is brought," he cannot
remove the foreclosure action on the basis of the Court's
diversity jurisdiction.*fn3 Neal, 980 F.2d at 747-48.

Manata argues in the alternative that the foreclosure action
was properly removed because the action "seeks recovery from a foreign state." Show Cause ¶ 5.
Manata does not cite any particular statute that would allow him
to remove the action for this reason, and the Court is not aware
of one. To the extent that Manata may mean to rely on
28 U.S.C. § 1441(d), that section provides only that a civil action brought
in a state court against a foreign state "may be removed by the
foreign state," not by any of the other named defendants.
28 U.S.C. § 1441(d) (emphasis added); see Schlumberger Indus. v.
Nat. Sec. Corp., 36 F.3d 1274, 1284 (4th Cir. 1994) (section
1441(d) "is intended only to protect the interest of the foreign
state to obtain, at its whim, a federal forum" (emphasis in
original)); Triton Container Intern. Ltd. v. Inst. of London
Underwriters, 1998 WL 750941, at *4 (N.D. Cal. Apr. 1, 1998)
(section 1441(d) "specifies that an action may be removed only by
the foreign state, not by other named defendants" (quotation
omitted)).

To the extent that Manata would base this argument instead on
28 U.S.C. § 1441(a), which allows any defendant to remove a civil
action for which a district court would have original
jurisdiction, the argument fares no better. Even assuming that
section 1441(a), taken together with the grant of original
jurisdiction over claims against foreign states in
28 U.S.C. § 1330(a), might be read to furnish removal jurisdiction where it
would not otherwise exist under section 1441(d)  and there is
reason to believe that it does not*fn4  section 1330(a)
only supplies jurisdiction against a foreign state for a "claim
for relief in personam." 28 U.S.C. § 1330(a); Geveke & Co.,
Int'l v. Kompania Di Awa I Elektrisidat Di Korsou N.V.,
482 F. Supp. 660, 664 (S.D.N.Y. 1979) (subject matter jurisdiction under
section 1330(a) is lacking where action is only in rem).*fn5 A foreclosure action is an action in rem,
not in personam. See Johnson v. Home State Bank,
501 U.S. 78, 84-85 (1991); United States v. Begin, 160 F.3d 1319, 1321
(11th Cir. 1998); United States v. Matthews, 221 F.2d 837, 888
(D.C. Cir. 1955). Accordingly, Manata cannot remove this case
under section 1441(a) by way of the grant of original federal
jurisdiction in section 1330(a).

Manata finally maintains that this Court has jurisdiction over
this action because it raises a federal question regarding the
application of the Foreign Sovereign Immunities Act ("FSIA").
Show Cause ¶ 6. To determine whether a case raises a federal
question for purposes of removal jurisdiction, this Court applies
the "well-pleaded complaint" rule, which holds that a cause of
action arises under federal law only when the federal claim can
be found on "the face of the complaint and only the face of the
complaint." Zuurbier v. MedStar Health, Inc.,
306 F. Supp. 2d 1, 4 (D.D.C. 2004); see Oklahoma Tax Comm'n v. Graham,
489 U.S. 838, 840 (1989). The complaint in this case only reveals a
foreclosure action brought exclusively under District of Columbia
law. Any issue pertaining to the FSIA would be raised, if at all,
as a defense to the action. Because a defense is insufficient to
confer jurisdiction on a federal court, see Caterpillar, Inc.
v. Williams, 482 U.S. 386, 392 (1987); Van Allen v. Bell
Atlantic-Washington, D.C., Inc., 921 F. Supp. 830, 832 (D.D.C.
1996), the potential involvement of the FSIA does not supply this
Court with removal jurisdiction. There is an exception to the "well-pleaded complaint" rule
where Congress "so completely pre-empt[s] a particular area [of
the law] that any civil complaint raising this select group of
claims is necessarily federal in character." Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 62 (1987). For there to be complete
preemption, Congress must have so thoroughly occupied an area of
law "that no room remains for any state regulation." Bastien v.
AT&T Wireless Servs., Inc., 205 F.3d 983, 986 (7th Cir. 2000).
The federal government is, to be sure, actively involved in
several aspects of the supervision of embassies and foreign
missions. See 22 U.S.C. § 4301-4316. Nevertheless, Congress has
emphasized that the role of the federal government in this field
should not be read to preempt state or municipal authority in
those areas that are traditionally the province of the states,
such as property law and safety regulations. See id. § 4307
("Nothing in . . . this title may be construed to preempt any
State or municipal law or governmental authority regarding
zoning, land use, health, safety, or welfare."); see also
United States v. Dist. of Columbia Bd. of Zoning Adjustment,
644 A.2d 995, 997 (D.C. 1994) (discussing state proceedings
pertaining to the location of a foreign mission). In light of
this law, it cannot be said that state authority over the
enforcement of a water and sewer lien on an embassy has been
preempted by Congress at all, much less "completely preempted" so
as to draw the case outside the "well-pleaded complaint" rule.

Manata has not met his burden of proving that this case
qualifies for removal. See, e.g., Julien v. CCA of
Tennessee, Inc., 268 F. Supp. 2d 19, 21 (D.D.C. 2003) ("When the
plaintiff makes a motion to remand, the defendant bears the
burden of proving federal jurisdiction."). None of the possible
bases for jurisdiction in this Court is viable. Accordingly, this
Court is compelled to remand this action to the Superior Court of
the District of Columbia. CONCLUSION

It is hereby ORDERED that this matter is REMANDED to the
Superior Court of ...

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